Cass R. Sunstein, Act Utilitarianism, Rule Utilitarianism, Rebellion, Resistance (Harvard Public Law Working Paper Series, forthcoming 2026).
Abstract: When and how should an individual or an institution act in response to extortion? What should an individual or an institution do to oppose tyranny, illegality, oppression, or horror, if the consequences of opposition might not be so good, or might be terrible? These questions arose in stark form in 2025, in the context of efforts by the Trump administration to punish, and to bring to heel, law firms, individuals, universities, and others. These efforts are connected with longstanding debates in legal and political philosophy. In particular, they put act utilitarianism on trial; those who decide what to do on the basis of an assessment of the likely consequences might produce bad consequences. Rule utilitarianism, or a commitment to a deontological norm, might be necessary to solve a collective action problem. The difficulty, and a grim truth, is that there can be no assurance that rule utilitarianism, or a commitment to a deontological norm, will accomplish anything. Patrick Henry's famous words, "Give Me Liberty or Give Me Death," is galvanizing, as is the slogan, popular in the 1950s and 1960s: "Better Dead Than Red." These propositions are briefly illustrated with reference to the behavior and experiences of scientists under Nazism.